III. Summary of the Major Provisions of §§ 211 and 212 of Pub.
L. 104-193
Pub. L. 104-193 provides a new statutory definition of disability for
children claiming SSI benefits and directs SSA to make significant changes
in the way we[1] evaluate childhood disability claims. Under the new law, a
child's impairment or combination of impairments must cause more serious
impairment-related limitations than the old law and the prior regulations
required.
Section 211(a) of Public Law 104-193 amended section
1614(a)(3) of the Act
to provide a definition of disability for children separate from that for
adults. The “comparable severity” criterion in the Act was
repealed and replaced with the following definition:
(C)(i) An individual under the age of 18 shall be considered disabled for
the purposes of this title if that individual has a medically determinable
physical or mental impairment, which results in marked and severe
functional limitations, and which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not
less than 12 months.
(ii) Notwithstanding clause (i), no individual under the age of 18 who
engages in substantial gainful activity (determined in accordance with
regulations prescribed pursuant to subparagraph (E)) may be considered to
be disabled.
The conference report that accompanied Public Law 104-193 further
explained:
The conferees intend that only needy children with severe disabilities be
eligible for SSI, and the Listing of Impairments and other current
disability determination regulations as modified by these provisions
properly reflect the severity of disability contemplated by the new
statutory definition. In those areas of the Listing that involve domains
of functioning, the conferees expect no less than two marked limitations
as the standard for qualification. The conferees are also aware that SSA
uses the term “severe” to often mean “other than
minor” in an initial screening procedure for disability
determination and in other places. The conferees, however, use the term
“severe” in its common sense meaning.
H.R. Conf. Rep. No. 725, 104th Cong., 2d Sess. 328 (1996),
reprinted
in 1996 U.S. Code, Cong. and Ad.
News 2649, 2716. The House report contains similar language. See H.R. Rep.
No. 651, 104th Cong., 2d Sess. 1385 (1996),
reprinted
in 1996 U.S. Code, Cong. and Ad.
News 2183, 2444.
Further provisions concerning childhood disability adjudication are
summarized below with references to the relevant sections of Public Law
104-193.
•
The Commissioner was directed to remove references to maladaptive behavior
in the personal/behavioral domain from listings 112.00C2 and 112.02B2c(2)
of the childhood mental disorders listings (Section 211(b)(1)).
•
The Commissioner was directed to discontinue the IFA for children in
20 CFR 416.924d
and 416.924e
(Section 211(b)(2)).
•
Within 1 year after the date of enactment, we must redetermine the
eligibility of individuals under the age of 18 who were eligible for SSI
based on disability as of August 22, 1996, and whose eligibility may
terminate by reason of the new law. The cases are to be redetermined using
the eligibility criteria for new applicants. The medical improvement
review standard in section
1614(a)(4) of the
Act and 20 CFR
416.994a, used in CDRs, shall not apply to these redeterminations
(Section 211(d)(2)).
•
The medical improvement review standard for determining continuing
eligibility for children was revised to conform to the new definition of
disability for children (Section 211(c)).
•
Not less frequently than once every 3 years, we must conduct a CDR for any
childhood disability recipient eligible by reason of an impairment(s)
which is likely to improve. At the option of the Commissioner, we may also
perform a CDR with respect to those individuals under age 18 whose
impairments are unlikely to improve (Section 212(a)).
•
SSA must redetermine the eligibility of individuals who were eligible for
SSI based on disability in the month before the month in which they
attained age 18 using the rules for determining initial eligibility for
adults. We will do the redetermination during the 1-year period beginning
on the individual's 18th birthday. The medical improvement review standard
used in CDRs does not apply to these redeterminations (Section
212(b)).
•
SSA must conduct a CDR not later than 12 months after the birth of the
child for any child whose low birth weight is a contributing factor
material to our determination that the child was disabled (Section
212(c)).
•
At the time of a CDR, a child's representative payee shall present
evidence that the child is and has been receiving treatment to the extent
considered medically necessary and available for the disabling impairment.
If a payee refuses without good cause to provide such evidence, we may
select another representative payee, or pay benefits directly to the
child, if we determine that it is appropriate and in the best interests of
the child (Section 212(a)).
These rules implement all of the provisions of sections 211 and 212 of
Public Law 104-193, with the exception of section 211(d)(2). Because
Public Law 104-193 repealed the “comparable severity”
disability standard for children, and eliminated use of the IFA, step 4 of
the prior sequential evaluation process (the comparable severity step) has
been removed. To be found disabled under these rules, an individual under
age 18 must have “marked and severe functional limitations,”
which means that his or her impairment or combination of impairments must
meet, or medically equal or functionally equal, the severity of a listed
impairment.
Summary of Specific Revisions
These interim final rules revise our prior rules for deciding initial
eligibility and continuing eligibility for children claiming SSI benefits
based on disability. They also provide rules for redetermining the
eligibility of individuals who attain age 18 and who were eligible for SSI
based on disability in the month before the month in which they attained
age 18.
The major changes to the rules are explained below. In addition, we have
added, removed, and revised language throughout subpart I of 20 CFR part
416 to remove references to the “comparable severity”
standard and our prior regulatory definition of disability interpreting
that standard. Since these are only conforming changes to comply with the
new law, we have not summarized each of them in this summary.
These rules do not address every aspect of the evaluation of disability of children and of individuals who have attained age 18. They implement primarily those changes required by Public Law 104-193. Therefore, they must be read in the context of all our other relevant rules for determining disability.
Appendix 1 to Subpart P of Part 404 - Listings 112.00C and 112.02B2
Public Law 104-193 mandates removal of references to “maladaptive
behaviors” in listings 112.00C2 and 112.02B2c(2) in the childhood
mental disorders section of the Listing of Impairments. Listing 112.00C
explains the severity criteria we use to evaluate a mental impairment in
most of our childhood mental disorder listings. These severity criteria
are often referred to as the “paragraph B” criteria because
they are found in paragraph B of most of the listings to which they apply.
Listing 112.02B2c(2) was a particular paragraph B criterion for
persistent, serious maladaptive behaviors in children aged 3 to 18.
Pursuant to Public Law 104-193, we have removed all references to
“maladaptive behaviors” in listing 112.00C and deleted all of
prior listing 112.02B2c(2); we have also redesignated the
“personal/behavioral” area as the area of “personal
function.” For this reason, we also removed the reference to
“activities of daily living” from former listing
112.02B2c(1), which we now designate as listing 112.02B2c because it is
the only paragraph remaining.
The area of personal function now pertains only to self-care; that is, the
ability to help oneself and to cooperate with others in taking care of
personal needs, health, and safety (e.g., feeding, dressing, toileting,
bathing, following medication regimens, and following safety precautions).
Further, we have clarified the description of the social area of
functioning to make it clearer that many impairment-related behavioral
problems (including those previously considered in the prior
personal/behavioral area) are likely to have their most significant
effects on a child's social functioning.
In addition, we revised the fourth area of function from
“concentration, persistence, and pace” to
“concentration, persistence, or pace.” This is a technical
correction to conform the language of this section to the rules in
listings 112.00C3 and 112.02B2d, which have always read
“deficiencies of concentration, persistence, or pace.” We
made a corresponding change in listing 112.00C4, which also used the word
“and.” We also made several clarifications in listing
112.00C2b. The changes are not substantive and are only intended to
parallel the adult mental listing 12.00C2 with appropriate language for
children.
Section 416.902 General Definitions and Terms for This Subpart
We have added four new definitions. First, we explain that a
disability redetermination (see
§ 416.987) is
a redetermination of eligibility based on disability using the rules for
new applicants appropriate to the individual's age, except the rules
pertaining to performance of substantial gainful activity. Second, we
explain that the term impairment(s)
means “a medically determinable physical or mental impairment or a
combination of medically determinable physical or mental
impairments.”
Third, we explain that the term
marked and severe functional limitations,
when used as a phrase, means the standard of disability in the Act for
children claiming SSI benefits, and is a level of severity that meets or
medically or functionally equals the requirements of a listing. We explain
that the separate words marked and
severe are also terms used
throughout this subpart, but the meanings of these words in the phrase
marked and severe functional limitations
is not the same as their meanings when used separately. The meaning of the
phrase
marked and severe functional limitations
derives directly from the legislative history of Public Law 104-193,
quoted in the “Summary of the Childhood Disability Provisions of
Public Law 104-193,” above. Since the meanings of the separate
terms marked and
severe predate enactment of Public
Law 104-193, they are touched on in this section to minimize any confusion
from the new law's use of the same words, used in combination with a
different meaning. Finally, we define
Commissioner to mean the
Commissioner of Social Security.
Section 416.906 Basic Definition of Disability for Children
We have revised this section to replace the prior “comparable
severity” standard with the new “marked and severe functional
limitations” standard for childhood disability. We also added the
statutory provision that an individual under age 18 who files a new claim
and who is engaging in substantial gainful activity will not be considered
disabled. For clarity, we added language specifying our longstanding
policy that we consider the effects of combined impairments in assessing
whether a child is disabled.
Section 416.919n Informing the Examining Physician or Psychologist of Examination Scheduling, Report Content, and Signature Requirements
We have amended §
416.919n(c)(6),
which concerns the opinion of a consulting physician or psychologist about
an individual's ability to function despite his or her impairment(s), to
add a discussion specific to childhood cases to make it clear that the
provision applies to both adults and children.
Section 416.924 How We Determine Disability for Children
We have extensively revised this section, which provides the sequential
evaluation process for childhood disability claims, to conform to the
provisions of Public Law 104-193.
We have deleted former paragraphs (a) and (f). Prior paragraph (a) defined
comparable
severity and prior paragraph (f)
discussed the IFA. We redesignated prior paragraphs (b) through (e) as (a)
through (d), and revised them as explained below. We added a new paragraph
(e) to explain what we will do when children become adults (i.e., they
attain age 18) after they file their applications for SSI benefits based
on disability but before we make a determination or decision. We
redesignated prior paragraph (g) as paragraph (f), but it is otherwise
unchanged. Also, we added a new paragraph (g).
In final §
416.924, the new
sequential evaluation process for determining initial eligibility
is:
1.
Whether the child is engaging in substantial gainful activity;
2.
If not, whether the child has a medically determinable impairment or
combination of impairments that is severe; and
3.
If the child's impairment(s) is severe, whether it meets or medically
equals the requirements of a listing, or whether the functional
limitations caused by the impairment(s) are the same as the disabling
functional limitations of any listing and, therefore, functionally
equivalent to such listing.
As in the prior sequential evaluation process, we will follow the steps in
order. If a determination or decision can be made at a step, we will stop;
if not, we will proceed to the next step.
New §
416.924(a),
“Steps in evaluating disability,” retains basic guidance from
prior §
416.924(b) that
is unaffected by the new law. It continues to provide that we will
consider all relevant evidence in a child's case record, that we will
consider all impairments for which we have evidence and their combined
effects, and that we will evaluate any limitations in a child's
functioning that result from a child's symptoms, including pain. We have
removed the reference to the prior IFA step and made minor revisions to
reflect the new statutory standard and the new sequence of evaluation.
Because meeting or equaling the severity of a listing is now the last step
of the sequence, we have emphasized the importance of the step by
specifying that a child will be disabled if his or her impairment(s)
meets, medically equals, or functionally equals the severity of any
listing. We also changed references to the “ability to
function” to “functioning” in order to conform to the
new statutory definition of disability, which is now expressed in terms of
“marked and severe functional limitations.”
Final paragraphs (b) through (d) provide more detail on the sequential
evaluation steps outlined in paragraph (a). Final paragraph (b), “If
you are working,” is the same as prior paragraph (c). A child who
files a new application, and who is engaging in substantial gainful
activity, will be found not disabled as required by the statute. Final
paragraph (c), “You must have a severe impairment(s),” is
substantively the same as prior paragraph (d), but revised to reflect the
new law. At step two of the sequential process, we will continue to
evaluate whether a child has a “severe” impairment or
combination of impairments. We now provide that if a child has a slight
abnormality or a combination of slight abnormalities that causes no more
than minimal functional limitations, we will find that the child does not
have a severe impairment and, therefore, is not disabled. The phrase
“minimal functional limitations” replaces the phrase from our
prior rules “minimal limitation in your ability to function,
independently, appropriately, and effectively in an age-appropriate
manner,” which, as noted above, was derived from the prior
statutory definition of disability.
Final paragraph (d), “Your impairment(s) must meet, medically equal,
or functionally equal in severity a listed impairment in appendix
1,” explains that an impairment(s) causes marked and severe
functional limitations if it meets, medically equals or functionally
equals the severity of a listed impairment. Thus, if a child's
impairment(s) meets, medically equals, or functionally equals in severity
a listing (and meets the duration requirement), we will find the child
disabled. If a child's impairment(s) does not meet or medically equal or
functionally equal in severity any listing, or does not meet the duration
requirement, we will find the child not disabled. We have removed the
language from prior paragraph (e) that said a child's claim would not be
denied because his or her impairment(s) was not of listing-level
severity.
We added a new paragraph (e), “If you attain age 18 after you file
your disability application but before we make a determination or
decision,” to explain what we will do in such cases. We will use
the rules for determining disability in adults when an individual whom we
found disabled prior to attaining age 18 attains age 18. (We have always
used the adult disability rules beginning at age 18 when we find that an
individual was not disabled prior to attaining age 18 to see if the
individual became disabled at a later date.) Therefore, final paragraph
(e) explains that, for the period during which the individual is under age
18, we will use the disability rules in §
416.924, but for
the period starting with the day the individual attains age 18, we will
use the disability rules for adults filing new claims in §
416.920.
Except for redesignating prior paragraph (g) as final paragraph (f),
“Basic considerations,” has not been changed. We will
continue to consider all relevant medical and nonmedical evidence in a
child's case record.
Finally, we have added a new paragraph (g) to explain that, when we make
an initial or reconsidered determination whether you are disabled or when
we make an initial determination about whether your disability continues
under section
416.994a, we will
complete a standard form, SSA-538, Childhood Disability Evaluation Form.
The new form is designed to guide our adjudicators through the new
sequential evaluation process and emphasizes the requirements for
establishing functional equivalence. In new paragraph (g), we also explain
that disability hearing officers, administrative law judges, and the
administrative appeals judges on the Appeals Council (when the Appeals
Council makes a decision) will not complete the form. This is because
these adjudicators issue decisions with detailed rationales and findings
that will already reflect the steps of the new sequential evaluation
process.
Section 416.924a Age as a Factor of Evaluation in Childhood Disability
Most of the guidance in our prior rules on consideration of age in
childhood disability cases has not been changed by Public Law 104-193. We
have revised this section to conform to the “marked and severe
functional limitations” disability standard. As under our prior
rules, we will consider the child's age in determining whether he or she
has a severe impairment(s). When evaluating whether the impairment(s)
meets, medically equals, or functionally equals the severity of a listing,
we will consider the child's age if the listing we consider uses age
categories. We have deleted prior paragraphs (a)(4) and (b), which
addressed issues related to the IFA.
We redesignated prior paragraph (c), “Correcting chronological age
of premature infants,” and prior paragraph (d), “Age and the
impact of severe impairments on younger children and older
adolescents,” as final paragraphs (b) and (c) and made changes to
conform to the new definition of disability; we deleted prior paragraph
(d)(4)(ii) because it was based on the prior “comparable
severity” standard.
Section 416.924b Functioning in Children
This section discusses some of the terms we use to describe or evaluate
functioning in children, including age-appropriate activities,
developmental milestones, activities of daily living, and work-related
activities. We retained the discussions of these terms with appropriate
conforming changes. We also clarified the explanations of the last three
terms, which were described in our prior rules as
“the most important indicators
of functional limitations” in, respectively, infants up to
attainment of age 3, children aged 3 to attainment of age 16, and older
adolescents aged 16 to attainment of age 18. In the interim final rules,
we describe these functions as being “most important as indicators
of functional limitations,” because the emphasis should be on
whatever age groups for which these indicators of functional limitations
are most appropriate.
Although we deleted prior paragraph (b)(5) because it described the
domains and behaviors used in performing an IFA under our prior rules,
consideration of functional limitations remains an integral part of the
childhood disability evaluation process. For example, final §
416.926a
describes areas of functioning we will consider when we evaluate whether a
child's impairment(s) is functionally equivalent in severity to a
listing.
Section 416.924c Other Factors We Will Consider
As under our prior rules, when we evaluate whether a child's impairment(s)
is disabling, we will consider all relevant factors, such as the effects
of medications, the setting in which the child lives, the child's need for
assistive devices, and the child's functioning in school. However, as
throughout these interim final rules, we have revised this section to
conform to the statutory “marked and severe functional
limitations” standard.
Section 416.924d Individualized Functional Assessment for Children
Section 416.924e Guidelines for Determining Disability Using the Individualized Functional Assessment
We deleted both of these sections as required by section 211(b)(2) of
Public Law 104-193.
Section 416.925 Listing of Impairments in Appendix 1 of Subpart P of Part 404 of This Chapter
We have revised paragraph (a) of this section, “Purpose of the
Listing of Impairments,” to explain that, for children, the Listing
of Impairments describes impairments that are considered severe enough to
result in marked and severe functional limitations. We revised paragraph
(b)(2), which explains the purpose of the childhood listings in part B of
the Listings, to explain that the level of severity of the impairments
listed in part B is intended to be the same as that expressed in the
functional severity criteria of the childhood mental disorders listings
(see 112.01 ff.). Therefore, in general, a child's impairment(s) is of
“listing-level severity” if it results in marked limitations
in two broad areas of functioning, or extreme limitations in one such
area. However, we also explain that when we decide whether a child's
impairment(s) meets the requirements for any listed impairment, we will
decide that the impairment is of “listing-level severity”
even if it does not result in marked limitations in two broad areas of
functioning, or extreme limitations in one such area, if the listing that
we apply does not require such limitations to establish that an
impairment(s) is disabling. We also explain that we define the terms
“marked” and “extreme” as they apply to children
in §
416.926a.
Section 416.926 Medical Equivalence for Adults and Children
In these interim final rules, we moved the rules for deciding whether a
child's impairment(s) is medically equivalent in severity to any listing
into the same section as the rules for deciding medical equivalence of
impairments in adults, reserving §
416.926a for
functional equivalence. To make this clear, we revised the heading of
final §
416.926 to reflect
the inclusion of children. We also revised final paragraph (a), “How
medical equivalence is determined,” by replacing the explanation of
how we determine medical equivalence with provisions from prior §
416.926a. We also
incorporated and revised the last sentence of prior §
416.926a(a),
explaining that we consider all relevant evidence in the case record when
we decide the issue of medical equivalence because it remains applicable
to both adults and children.
We decided to use the provisions of former §
416.926a(b) to
explain our rules for determining medical equivalence for both adults and
children. This is not a substantive change, but a clearer statement of our
longstanding policy on medical equivalence than was previously included in
prior §
416.926(a), as it
was clarified for children in prior §
416.926a(b).
This merely allows us to address only once in our regulations the policy
of medical equivalence, which is and always has been the same for adults
and children. (Although some of the text of §
416.926(a) will
differ from the text of §
404.1526(a),
both sections, which are in chapter III of title 20 of the Code of Federal
Regulations, will continue to provide the same substantive rules.)
We have also added a new paragraph (d), “Responsibility for
determining medical equivalence,” to address our longstanding
policy of who is responsible for determining medical equivalence for
adults and children.
Section 416.926a Functional Equivalence for Children
Although Public Law 104-193 discontinued the use of the IFA, the
legislation nevertheless emphasized that we were still to continue
evaluating the functioning of children in our disability assessments, as
shown by the new statutory definition of disability, “marked and
severe functional limitations.”
Moreover, in the legislative history, the conferees stated:
. . . Where appropriate, the conferees remind SSA of the importance of the
use of functional equivalence disability determination procedures.
. . . [T]he conferees do not intend to suggest by this definition of
childhood disability that every child need be especially evaluated for
functional limitations, or that this definition creates a supposition for
any such examination. . . . Nonetheless, the conferees do not intend to
limit the use of functional information, if reflecting sufficient severity
and is otherwise appropriate.
H.R. Conf. Rep. No. 725, 104th Cong, 2d Sess. 328 (1996),
reprinted
in 1996 U.S. Code, Cong. and Ad.
News 2649, 2716. The House Report also contained similar language about
the importance of functional information. See H.R. Rep. No. 651, 104th
Cong., 2d Sess. 1385-1386 (1996),
reprinted
in 1996 U.S. Code, Cong. and Ad.
News 2183, 2444-2445.
Thus, even though it eliminated the IFA, Congress directed us to continue
to evaluate a child's functional limitations where appropriate, albeit
using a higher level of severity than under the former IFA. Congress also
explicitly endorsed our functional equivalence policy as a means for
evaluating impairments that would not meet or medically equal any of our
listings and without which some needy children with severe disabilities
would not be eligible.
Therefore, we are retaining our prior policies on determining functional
equivalence. Because the changes made by Public Law 104-193 make the
functional equivalence provision the last point of adjudication in a
child's claim and, therefore, critical to the outcome of many cases, we
are also clarifying these rules.
When we published the prior rules in the
Federal Register on September 9,
1993, we chose not to adopt a number of public comments about our policy
of “functional equivalence.” Some commenters on the 1993
rules thought that, because the functional equivalence policy was
unfamiliar, it was important that we provide as much detail as possible in
the regulations so that all adjudicators would understand and apply the
new rules in the same way. Several commenters also said that §
416.926a should
explain the “thought processes” an adjudicator could employ
to make a finding of functional equivalence; otherwise, the policy of
functional equivalence might be under-utilized. One suggestion was that we
incorporate into the rules the more detailed instructions in our operating
manuals and training guides. One commenter suggested that we provide
separate headings for medical equivalence and functional equivalence to
highlight their differences and the novelty of the functional equivalence
policy.
Although we did not adopt the comments in 1993, we have made changes in
these rules that respond to some of the earlier concerns of 1993 to
reflect the increased importance of the functional equivalence policy
under the new law.
First, as noted in the explanation of §
416.926, we have
separated the discussion of medical equivalence for children from the
discussion of functional equivalence for children. We have also
incorporated some of the more detailed explanations from our operating
manuals regarding the application of functional equivalence.
Final paragraph (a), “General,” and final paragraph (b),
“How we determine functional equivalence,” now include, in
reorganized form, the rules for functional equivalence previously in
§
416.926a(a) and
(b)(3). As
already indicated, we moved prior (b)(1) and (b)(2), which explained
medical equivalence, to §
416.926. Because
of the reorganization, we deleted the second sentence from prior paragraph
(b)(3) (“If you have more than one impairment, we will consider the
combined effects of all your impairments on your overall
functioning.”) because it would have been redundant.
In final paragraph (b), we also included some of the more detailed
guidelines concerning functional equivalence that commenters on the 1993
childhood disability rules requested that we include in the regulations,
and that we believe are necessitated by the new definition of disability.
This paragraph explains that there are several methods for determining
functional equivalence, and that we may use any one of them to determine
whether an impairment is functionally equivalent in severity to a listing.
Subparagraphs then explain the various methods that we may employ to
determine functional equivalence. We explain that there is no set order in
which we must apply these methods and that, when we find that an
impairment(s) is functionally equivalent to a listed impairment, we will
use any method that is appropriate to, or best describes, a child's
impairment(s) and functional limitations. However, we explain that we will
consider all of the methods before we decide that an impairment(s) is not
functionally equivalent in severity to any listed impairment and refer to
final §
416.924(g),
which explains how we will use the new Childhood Disability Evaluation
Form at the initial and reconsideration levels.
In (b)(1), we explain the first method we may use. An impairment(s) may be
functionally equivalent in severity to a listed impairment because of
extreme limitations in one specific function, such as walking or talking,
or based on a combination or more than one, but less medically severe,
specific functional limitations, such as walking and talking. In (b)(2),
we explain that an impairment(s) may be functionally equivalent to a
listed impairment if it causes functional limitations in broad areas of
development or functioning (e.g., in motor or social functioning) that are
equivalent in severity to the disabling functional limitations in Listing
112.12 or Listing 112.02. (The areas of functioning in which an
impairment(s) may be evaluated are discussed in paragraph (c), described
below.) In (b)(3), we explain that an impairment(s) may be functionally
equivalent to a listed impairment if it is chronic and characterized by
frequent episodes of illness or attacks, or by exacerbations and
remissions. In such cases, we may compare a child's functional limitations
to those in any listing for a chronic impairment with similar episodic
criteria. In (b)(4), we explain that an impairment(s) may be functionally
equivalent to a listed impairment if it requires treatment over a long
period of time (at least a year) and the treatment itself (e.g., multiple
surgeries) causes marked and severe functional limitations, or if the
combined effects of limitations caused by ongoing treatment and
limitations caused by the impairment(s) result in marked and severe
functional limitations.
In final paragraph (c), “Broad areas of development or
functioning,” we explain that Listing 112.12, for infants
(especially infants who are too young to test) and Listing 112.02 are the
listings we will use for comparison when we use this method of functional
equivalence. However, when we determine functional equivalence based on
broad functional limitations, we will evaluate the functional effects of
an impairment(s) in several areas of development or functioning specified
in this paragraph of §
416.926a instead
of referring to the listings themselves. We also explain that we describe
the areas of functioning in general terms in (c)(4) and in more detail for
specific age groups in (c)(5). If we find “marked
limitations” in two areas of development or functioning, or
“extreme limitations” in one area, we will find that an
impairment(s) is functionally equivalent to Listing 112.12 or Listing
112.02. Even though the listings we use for reference are mental disorder
listings, this evaluation may be done for a physical impairment(s) or for
a combination of physical and mental impairments. We define the terms
“marked limitations” and “extreme limitations”
in (c)(3).
In (c)(1), we explain how we use the areas of development or functioning:
We consider the extent of functional limitations in the areas affected by
an impairment(s) and how limitations in one area affect development or
functioning in other areas. Thus, when a physical impairment(s) produces
global limitations (i.e., limitations in the motor area and at least one
other area), those limitations must be evaluated in all relevant areas. We
also make reference to new areas of motor development and functioning we
have added to ensure appropriate consideration of physical
impairments.
In (c)(2), “Other considerations,” we explain that we will
consider all information in the case record that will help us determine
the effect of an impairment(s) on a child's physical and mental
functioning. We will consider the nature of the impairment(s), the child's
age, the child's ability to be tested given his or her age, the child's
need for help from others (and whether such need is age-appropriate), and
other relevant factors.
In (c)(3), we define the terms “marked” and
“extreme” limitations. The definitions are not new, but are
based on longstanding policy in the regulations and interpretations we
have used in our internal instructions and training. In (c)(4) and (c)(5),
we describe the areas of development or functioning that may be addressed
in a determination of functional equivalence, including the new areas of
motor development and motor functioning and the revised
“personal” area of functioning.
The descriptions are based on our prior descriptions and changes mandated
by Public Law 104-193, and contain several clarifications based on our
experience evaluating functional equivalence in children since 1991.
Final paragraph (d), “Examples of impairments that are functionally
equivalent in severity to a listed impairment,” is substantively
the same as prior paragraph (d), “Examples of impairments of
children that are functionally equivalent to the listings.” We made
minor editorial changes for clarity and, as throughout the rules, to
conform the language to the changes in the law. We also updated examples
(1) and (11) to remove examples of cardiovascular impairments that are now
listed impairments and, therefore, no longer examples of equivalence. We
changed example (4) to delete reference to a “marked inability to
stand and walk” because the limitation described is actually
“extreme.” We changed example (5) to show how the area of
motor functioning may be used. We also clarified the primary purpose of
example (10), which is primarily for children who are too young to test
and for whom a diagnosis and other medical findings may be difficult to
specify.
Section 416.927 Evaluating Medical Opinions About Your Impairment(s) or Disability
We have added a description of the “marked and severe functional
limitations” standard for children to paragraph (a),
“General,” which already included a description of the
disability standard for adults.
Section 416.929 How We Evaluate Symptoms, Including Pain
Throughout this section, we have replaced references to a child's ability
to “function independently, appropriately, and effectively in an
age-appropriate manner” with references to the child's
“functioning.” The rules for evaluating a child's symptoms
are otherwise unchanged by the new law.
Section 416.930 Need To Follow Prescribed Treatment
This section explains that, in order to receive benefits, an individual
must follow treatment prescribed by his or her physician if the treatment
can restore his or her ability to work; i.e., if the treatment could end
the individual's disability. We have added parallel language explaining
that a child must follow prescribed treatment if the treatment can reduce
his or her functional limitations so that they are no longer “marked
and severe.”
Section 416.987 Disability Redeterminations for Individuals Who Attain Age 18
This section is new. It provides rules for disability redeterminations
mandated by section 212(b) of Public Law 104-193.
In paragraphs (a)(1) and (a)(2), we explain that Public Law 104-193
requires these redeterminations and that, when we do these disability
redeterminations, we generally will use the rules for adults filing new
claims, not the rules we use for CDRs.
In paragraph (a)(3) we explain that we will notify individuals before we
begin a disability redetermination. In paragraph (a)(4) we explain that we
will notify the individual in writing of the results of the
redetermination and explain the individual's rights in connection with our
notice of disability redetermination.
Paragraph (b) concerns a group of recipients who are subject to disability
redeterminations under section 212(b) of the new law: individuals who
became eligible by reason of disability prior to attaining age 18, and who
were eligible for SSI benefits based on disability for the month before
the month in which they attained age 18. Paragraphs (b)(1) through (b)(7)
of this section provide that, during the 1-year period beginning on the
individual's eighteenth birthday, we will redetermine the eligibility of
these individuals using the rules in §§
416.920(c)
through (f), and not the rules in §
416.920(b) or
§ 416.994;
i.e., we will decide whether an individual is disabled using the rules for
adults filing new claims, except the rule that says an individual engaging
in substantial gainful activity will be found not disabled. If an
individual age 18 or older has a “disabling impairment” as
defined in §
416.911 and is
working, we will apply the rules for special SSI eligibility in
§§
416.920ff. We also
provide that eligibility will end if we find that the individual is not
disabled and describe the month in which we may find an individual not
disabled. Finally, we explain that, if we find an individual is not
disabled, the last month for which benefits can be paid is the second
month after the month in which the individual was determined not to be
disabled.
Other Changes
Sections that have been changed only so that their language will conform
to the new definition of disability for children, or to provide references
to new or revised rules, include §§
416.901,
416.912,
416.913, and
416.919a.